I know there will be a lot of discussion today about the politics of all this, about who won and who lost. That’s how these things tend to be viewed here in Washington. But that discussion completely misses the point. Whatever the politics, today’s decision was a victory for people all over this country whose lives will be more secure because of this law and the Supreme Court’s decision to uphold it.'via Blog this'

Fox and CNN blew it, announcing the ACA individual mandate had been declared unconstitutional, failing to turn the page on the court's syllabus. CJ Roberts rejects the Commerce Clause argument but upholds the mandate as a tax.HERE is the link to the video

Thanks to John Roberts, my new best friend. Good-bye to my old sweetheart Anthony Kennedy.HERE is the opinion in National Federation of Independent Businesses v. Sebelius.

My 7-2 prediction was wrong (I thought Kennedy and Alito would fall in line behind the Chief Justice) but my prediction of the `why' was correct. Roberts wrote:

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

In his peroration, Justice Scalia says that "Arizona bears the brunt of theuntry's illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrant who invade their property, strain their social services, and even place their lives in jeopardy." Arizona bears the brunt? Arizona is only one of the states that border Mexico, and if it succeeds in excluding illegal immigrants, these other states will bear the brunt, so it is unclear what the net gain to society would have been from Arizona's efforts, now partially invalidated by the Supreme Court. But the suggestion that illegal immigrants in Arizona are invading Americans' property, straining their social services, and even placing their lives in jeopardy is sufficiently inflammatory to call for a citation to some reputable source of such hyperbole. Justice Scalia cites nothing to support it.As of last year there were estimated to be 360,000 illegal immigrants in Arizona, which is less than 6 percent of the Arizona population—below the estimated average illegal immigrant population of the United States. (So much for Arizona's bearing the brunt of illegal immigration.) Maybe Arizona's illegal immigrants are more violent, less respectful of property, worse spongers off social services, and otherwise more obnoxious than the illegal immigrants in other states, but one would like to see some evidence of that.

Northwestern U. law prof Andrew Koppelman is one of my favorite law profs to read. (Most academic legal writing is so disconnected that I wonder why the profs get up in the morning.) He is engaged and engaging. (That being a favorite complimentary verb of mine.)
He recently dismantled (to my satisfaction) Georgetown law prof Randy Barnett who is engaged - but on the wrong side. Barnett is credited with the brilliant wrong-headed simplicity of the argument that the Affordable Care Act's individual mandate is unconstitutional because it compels you to engage in commerce - rather than regulate commerce. This argument has lots of Tory resonance - Margaret Thatcher justified the Falklands war by Argentina's breach of its contract recognizing the Empire's sovereignty over the windswept south Atlantic pastures. Karl Marx in the Communist Manifesto called freedom of contract the "single unconscionable freedom" to which the bourgeoisie had reduced all freedom. So there you have Barnett's core argument: a contract I am not free to reject is tyranny not liberty. In this follow-on piece Koppelman credits his colleague Steve Lubet with the stunning phrase "tough luck libertarianism". Brilliant. - GWC

"I argued a few days ago that the constitutional challenge to the Affordable Care Act’s insurance mandate reflects the anarchist-libertarian proclivities of its principal theorist, Randy Barnett. But this invites an obvious objection. The challenge to the mandate is a free-standing argument. It does not expressly rely on its author’s other views. Why think that there is any relation between the two?
One important bit of evidence comes from the questions that three justices saw fit to ask at the oral argument in March. Those questions each presumed that something like Barnett’s philosophical views can be read into the Constitution – and that there is a serious danger that they will decide this case by relying on those views. That is very bad news for anyone who is neither healthy nor rich."

Tuesday, June 26, 2012

A commission headed by former Chief Judge Judith Kaye has recommended in a report that New York add six new Court of Claims judges for assignment to the Supreme Court's Commercial Division and increase the monetary threshold from its current $150,000 to $500,000. The blue ribbon Task Force on Commercial Litigation in the 21st Century provides important backing for Chief Judge Jonathan Lippman in his struggle with the Legislature for adequate funding of a state court system whose deficiencies include woefully inadequate indigent defense in criminal cases.

Monday, June 25, 2012

Court strikes down much of Arizona immigration law : SCOTUSblog:
Ken Russell at Scotusblog reports on the Supreme Court's 5-3 decision striking most of the SB 1070 - Arizona's punitive law dealing with aliens. In Arizona v. U.S. Justice Anthony Kennedy explains that the court allows the provision requiring Arizona police to check the immigration status of persons suspected of being illegal aliens. The provision is so broad that it is likely - as enforced - to be a tool of harassment of Mexican Americans. But on its face the law is reasonable, so the majority leaves to another day assessment of it in practice.

The other provisions blatantly intrude on federal prerogatives: criminalizing work, commanding alien registration, and permitting warrantless arrest and search on suspicion of being an alien subject to deportation. Those provisions interfere with the federal government's exclusive power over immigration, Kennedy writes.

The majority explains the provision it upheld and limited:

“However the law is interpreted, if §2(B) only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision likely would survive pre- emption—at least absent some showing that it has other consequences that are adverse to federal law and its objectives. There is no need in this case to address whether reasonable suspicion of illegal entry or another immigration crime would be a legitimate basis for prolonging a detention, or whether this too would be preempted by federal law.”

Justice Antonin Scalia's typically hyperbolic dissent centers on the phrase "sovereign state", which he says includes the ability to exclude people from its territory. Well, no - because the Constitution gives the Congress the power to “establish an uniform Rule of Naturalization,” Art. I, §8, cl. 4.* State sovereignty is much abridged by that provision, contrary to Scalia's view, which is driven by his sympathy for the anti-immigrant sentiment in Arizona:

Arizona bears the brunt of the country’s illegal immigration problem. Its citizens feel themselves under siege by large numbers of illegal immigrants who invade their property, strain their social services, and even place their lives in jeopardy. Federal officials have been unable to remedy the problem, and indeed have recently shown that they are unwilling to do so. Thousands of Arizona’s estimated 400,000 illegal immigrants—including not just children but men and women under 30—are now assured immunity from enforcement, and will be able to compete openly with Ari­zona citizens for employment.

Today's statement by President Obama shows a markedly different sentiment:

I remain concerned about the practical impact of the remaining provision of the Arizona law that requires local law enforcement officials to check the immigration status of anyone they even suspect to be here illegally. I agree with the Court that individuals cannot be detained solely to verify their immigration status. No American should ever live under a cloud of suspicion just because of what they look like. Going forward, we must ensure that Arizona law enforcement officials do not enforce this law in a manner that undermines the civil rights of Americans, as the Court’s decision recognizes.

Furthermore, we will continue to enforce our immigration laws by focusing on our most important priorities like border security and criminals who endanger our communities, and not, for example, students who earn their education – which is why the Department of Homeland Security announced earlier this month that it will lift the shadow of deportation from young people who were brought to the United States as children through no fault of their own.

* It is also worth noting that despite the leading role of now-lionized as liberty-loving founding fathers (e.g. slave-owning future Presidents Madison and Jefferson) - Article 1, Sec. 9 contemplated a future federal ban on importation of slaves by states: "The Migration or Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person. "

Sunday, June 24, 2012

Despair is the reigning mood among the liberal commentariat, witness the usually optimistic about America James Fallows who laments we are witnessing a slow motion coup, Michael Tomasky is ready to unload on Obama for insufficiently fierce denunciation of the anti-ACA Supreme Court majority. Ivy League con law profs are hedging their bets - saying they are pro-ACA but predicting the majority rejects the mandate. The most revealing is the 57% of former Supreme Court law clerks and advocates who predict the mandate will lose. That is pretty close to a coin toss. So here is my hazard, which I dared to post on Jonathan Bernstein's A Plain Blog About Politics:

There is an election in five months. If the five Republican judges are conservative jurists as they often proclaim they will abide the election results. I predict the mandate stands by 7 - 2 vote, only Scalia and Thomas dissenting. - GWC

Saturday, June 23, 2012

The official China Daily is not very impressed with Congress's recent resolution of apology for the Chinese Exclusion Act. It barred Chinese immigration for ten years and bred the plenary power doctrine which defers full discretionary power to Congress to set the terms on which foreigners may come to the U.S. See Law and Border- GWC

Delayed apology, delayed justice - People's Daily Online: "After the U.S. Senate passed a bill to apologize for the "Chinese Exclusion Act" on Oct. 6, 2011, the U.S. House of Representatives also passed a bill on June 18, formally apologizing for the Act.
This is a delayed justice. The U.S. Congress had voted through the "Chinese Exclusion Act" in 1882 to restrict the rights of Chinese in the United States and prohibit them entering the state, which is extremely rare in the history of the world and also a great shame to the United States which has been flaunting the human rights. The world has waited for 130 years to hear the apology from the United States. At the beginning of the 19th century, there were not too many Chinese living in the United States. Because of the construction of railroads, a large number of Chinese workers began entering the United States. To the Chinese workers, it was reasonable and legitimate to enter the country to seek a livelihood under the legal proceedings of China and the United States. To the United States, it urgently needed foreign laborers to develop the western region. It can be said that the Chinese had participated in a mutually beneficial cooperation. "'via Blog this'

Toward a Manifesto of Inspiration for A People’s Law School - ReligiousLeftLaw.com:
Patrick O'Donnell has compiled a reading list for a law school reinvisioned as a school of service. It is a topic renewed by the dreadful economics of the privatization of education. The ABA Journal reports that only 5 of 2011 law school grads had J.D.-required jobs nine months after graduation. Brian Tamanaha describes the crisis in his Failing Law Schools. I look back at the golden age of cause lawyering in my forthcoming `People's Electric - Engaged Legal Education at Rutgers Newark in the 1960's and 1970's'. 'via Blog this'

"The United States is in the midst of a vicious cycle of inequality and recession: Inequality prolongs the downturn, and the downturn exacerbates inequality. Unfortunately, the austerity agenda advocated by conservatives will make matters worse on both counts.
The seriousness of America’s growing problem of inequality was highlighted by Federal Reserve data released this month showing the recession’s devastating effect on the wealth and income of those at the bottom and in the middle. The decline in median wealth, down almost 40 percent in just three years, wiped out two decades of wealth accumulation for most Americans. If the average American had actually shared in the country’s seeming prosperity the past two decades, his wealth, instead of stagnating, would have increased by some three-fourths."'via Blog this'

Ed Olexa handled nearly 260 cases last year, with more than half of them felonies -- mostly assaults and robberies and the more serious drug charges. The rest of his clients face misdemeanors, which in Pennsylvania can bring a jail or prison sentence of up to three years. He also files his own appeals, a complicated, time-consuming process. The American Bar Association recommends that full-time public defenders handle no more than 150 felony cases in an entire year.Olexa's caseload far exceeds those standards, but there's a twist: he technically works only part-time for the county. Like the majority of attorneys in the public defender's office, his salary of about $30,000 is based on the pretext that he carries only half the workload of a full-time attorney, and can earn a second income by taking on private clients. In reality, Olexa works a grueling schedule simply to keep pace with the constant influx of county cases and squeezes in private clients whenever he can, often by working through the weekends.

Mr. President, What's the rush?: No other state has made as much progress in covering their uninsured as Massachusetts.... I worked in a bipartisan fashion with Democrats to insure all our citizens... it passed the 200-member legislature with only two dissenting votes. It had the support of the business community, the hospital sector and insurers…. Our citizens purchase private, free-market medical insurance.... Using tax penalties, as we did... encourages “free riders” to take responsibility for themselves rather than pass their medical costs on to others. This doesn’t cost the government a single dollar….

by Larry Bartels/The Monkey CageJonathan Haidt writes that “the Republicans are increasingly becoming the party of people who currently hold jobs.” He really means white people without college degrees who currently hold jobs. Or maybe southern white people without college degrees who currently hold jobs.

Monday, June 18, 2012

"I just finished reading a book that everyone who cares about legal education in the United States should read: Failing Law Schools by Brian Z. Tamanaha. The book does an excellent job of describing the economic realities of law schools for prospective law students and society as a whole. Tamanaha gives a compelling and highly critical analysis of how law school became so expensive, and what can be done about it now. And, he doesn’t pull punches. If the law school you went to wasn’t mentioned, the law school you teach at, or that your colleagues went to will be named (and shamed). Tamanaha is critical of law schools and law professors from the top 14 to the 4th Tier and every school in between."

The 10b-5 Daily: Supreme Court To Address Fraud-On-The-Market Theory: "A key development this week was the Supreme Court's decision to hear the Amgen Inc. v. Connecticut Retirement Plans and Trust Funds case on appeal from the Ninth Circuit. Pursuant to the fraud-on-the-market theory, reliance by investors on a misstatement is presumed if the company's shares were traded on an efficient market that would have incorporated the information into the stock price. The fraud-on-the-market presumption is routinely invoked in securities class actions to justify the grant of class certification because it removes the potential need for individual evaluations of reliance.

At issue in the Amgen case is a circuit split over whether a plaintiff must prove that the misstatement was material to invoke the fraud-on-the-market theory in support of class certification. Three circuit courts (Second, Fifth and, to a lesser extent, the Third) previously have held that this is a required part of the fraud-on-the-market analysis when evaluating whether a class should be certified. The Ninth Circuit joined a decision from the Seventh Circuit, however, in rejecting that position. The court held that materiality is a merits question that does not affect whether class certification is appropriate"

This mass march down 5th Avenue is one of the most important developments in the City of New York in many, many years. The dilemma of the situation of Black people in the United States is that white Americans who long found ways to rationalize the inferior position of Black people are intolerant of corrective measures. The Supreme Court for forty years now has blocked with increasing rigor any race-conscious remedy.
Meanwhile minorities fill the jails, drop out of school, and are unemployed at dreadful rates. All this under regimes facially-neutral but disparate in impact. Black youth drink no more alcohol and smoke no more marijuana than whites - but suffer hundreds of thousands of searches and arrests in New York. White voters are comfortable with this. The declining crime rate is seen as the result of this regime of stop and frisk, arrest, and incarceration. Finally the tide seems to be running against the police state tactics of the NYPD and Mayor Bloomberg. - GWCThousands March Silently to Protest Stop-and-Frisk Policies - NYTimes.com:

"In a slow, somber procession led by the Rev. Al Sharpton and other civil rights leaders, several thousand demonstrators began a silent march on Sunday down Fifth Avenue from 110th Street to protest the New York Police Department’s stop-and-frisk policies, which the organizers say single out minority groups and create an atmosphere of martial law for the city’s black and Latino residents"...

John Steele at Legal Ethics Forum reports that the Washington Supreme Court has adopted Standards of Indigent Defense for Public Defenders, authored and recommended by the State Bar Association's Council on Indigent Defense. New York's Court of Appeals has punted on the issue - allowing a challenge to proceed in litigation but declining in Hurrell-Haring v. State of NY to issue statewide performance standards. So it is excellent news that a state high court has taken seriously the obstacles Public Defenders and other defense lawyers face in trying to meet the constitutional mandate to provide effective assistance of counsel. There is strong hortatory language, experience qualifiers and staffing requirements (e.g. two for sex offense cases). But despite "weighting standards" that permit a complex case to count for more than one case, and experience guidelines, the caselad limits don't feel limited at all:150 Felonies per attorney per year; or 300 Misdemeanor cases per attorney per year or, in jurisdictions that have not adopted a numerical case weighting system as described in this Standard, 400 cases per year; or250 Juvenile Offender cases per attorney per year; or80 open Juvenile Dependency cases per attorney; or250 Civil Commitment cases per attorney per year; or1 Active Death Penalty trial court case at a time plus a limited number of non death penalty cases compatible with the time demand of the death penalty case and consistent with the professional requirements of Standard 3.2 or 36 Appeals to an appellate court hearing a case on the record and briefs per attorney per year.

Under this directive, individuals who demonstrate that they meet the following criteria will be eligible for an exercise of discretion, specifically deferred action, on a case by case basis:

Came to the United States under the age of sixteen;

Have continuously resided in the United States for a least five years preceding the date of this memorandum and are present in the United States on the date of this memorandum;

Are currently in school, have graduated from high school, have obtained a general education development certificate, or are honorably discharged veterans of the Coast Guard or Armed Forces of the United States;

Have not been convicted of a felony offense, a significant misdemeanor offense, multiple misdemeanor offenses, or otherwise pose a threat to national security or public safety;

Are not above the age of thirty.

Only those individuals who can prove through verifiable documentation that they meet these criteria will be eligible for deferred action. Individuals will not be eligible if they are not currently in the United States and cannot prove that they have been physically present in the United States for a period of not less than 5 years immediately preceding today’s date. Deferred action requests are decided on a case-by-case basis. DHS cannot provide any assurancethat all such requests will be granted.The use of prosecutorial discretion confers no substantive right, immigration status, or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights

Although some - like Justice Stevens - hold out hope that Chief Justice Roberts, et al. will narrow Citizens United - at least by barring foreign money, I wouldn't hold my breath. But former Senator Feingold isn't giving up the fight. In blunt language he writes "[t]he corrupt entities created by Citizens United threaten[] to erase the gains we’ve enjoyed since the Bipartisan Campaign Reform Act. Now, instead of small-dollar, online donors, the most prominent actors in the 2012 election cycle are unnamed corporations and a small group of influential—primarily conservative—billionaires."The Money Crisis - Stanford Law Review: by Russ Feingold

As we draw closer to the November election, it becomes clearer that this year’s contest, thanks to the Supreme Court’s 2010 Citizens United decision, will be financially dominated by big money, including, whether directly or indirectly, big money from the treasuries of corporations of all kinds. Without a significant change in how our campaign finance system regulates the influence of corporations, the American election process, and even the Supreme Court itself, face a more durable, long-term crisis of legitimacy....

Julio Figueroa was arrested for drinking in public - carrying beer in a styrofoam cup near his home. 125,000 people were similarly charged last year in New York City. “As hard as I try, I cannot recall ever arraigning a white defendant for such a violation,” wrote Judge Brooklyn Supreme Court Judge Dear, a former city councilman who was elected to a judgeship in 2007.

Judge Dear wrote that he had his staff review a month’s worth of past public-drinking summonses issued in Brooklyn, and found that 85 percent of the summonses were issued to blacks and Latinos, while only 4 percent were issued to whites. According to census data, Brooklyn’s population is about 36 percent white."

The Times reports that Dear announced that henceforth he will require a lab report to prov alcoholic content in excess of .05%. the sniff test won't do nor will an admission by the defendant. Black and Latin residents of New York live under a police regime of harassment that white voters generally believe protects them from Black and Latin muggers; while Black and Latin citizens view it as racial discrimination.

Monday, June 11, 2012

The widely reported bad news about the legal job market is that 2011 was a bad year. These are structural problems aggravated by the anti-tax sentiment which transferred so much of the cost of higher education to students who borrow to attend school.
My first law job was as a business representative for Actors Equity - the Broadway theater union. Hired by the Executive Secretary - a labor lawyer for whom I had interned - my job did not require a J.D. - but I did handle grievance arbitrations, reviewed contracts, etc. I could have stayed, become a negotiator, etc. using my legal training. Many non J.D. jobs today will have similar benefits. But what comes next? When I went into private practice there were lots of things for which working people needed lawyers: injuries at work, tenant unions!, buying and selling houses, automobile accidents (in cars without seat-belts), major and minor criminal charges. Not so clear today what work will be available. - GWC

NALP - The Association for Legal Career Professionals | Law School Grads Face Worst Job Market Yet - Less Than Half Find Jobs in Private Practice: "According to Selected Findings from the Employment Report and Salary Survey for the Class of 2011 released today by NALP, the overall employment rate for new law school graduates is, at 85.6%, the lowest it has been since 1994, when the rate stood at 84.7%. In addition to an overall employment rate that fell two percentage points from that for the previous class, and that has dropped each year since 2008, the Class of 2011 employment figures reveal a job market with many underlying structural weaknesses. The employment profile for this class also marks a continued interruption of employment patterns for new law school graduates that had, prior to 2010, been undisturbed for decades....Indeed, low as it is, the overall employment rate of 85.6% of graduates for whom employment status was known actually conceals a number of negative trends in the job market that were first apparent for the Class of 2009 but have since become more prominent. For instance, of those graduates for whom employment was known, only 65.4% obtained a job for which bar passage is required. This figure has fallen over 9 percentage points just since 2008 — when it was 74.7% — and is the lowest percentage NALP has ever measured. Conversely, an additional 12.5% obtained jobs for which a JD provides an advantage in obtaining the job, or may even be required, but for which bar passage is not required (these are often described as law-related jobs). This compares with 10.7% for the Class of 2010 and is the highest since NALP began comparable tracking in 2001. The percentage of graduates employed in other capacities was 7.2%. The percentage of jobs reported as part-time stood at almost 12%, up from about 11% in 2009 and 2010, and in contrast to 6.5% for 2008 and about 5% in the years immediately prior to that. Almost 7% of jobs were both temporary (defined as lasting less than a year) and part-time. As was the case in 2010, 3% of 2011 graduates were continuing their academic studies full-time, leaving 12.1% who were neither working nor continuing their studies as of February 15, 2012. (It is important to note that a small but unknown portion of the 12.1% of graduates not reported as working have in fact secured a job but had not started working in that job as of February 15.)

Friday, June 8, 2012

OMG. Really = why is there no Democratic message discipline?Another Dem cave on tax hikes for rich? - The Plum Line - The Washington Post:
by Jonathan Bernstein
"In the annals of “we’ve seen this movie before,” Democrats are apparently once again becoming confused and potentially divided over what to do with the Bush-era tax rates that are schedule to expire at the end of the year."

Ineffective assistance of counsel - the denial of the fair adversary proceedings contemplated by the Fifth - and especially the Sixth Amendments of the federal constitutions - extends to the plea bargaining process. The point was obviously made in Padilla v. Kentucky when a veteran and resident alien facing charges for transporting marijuana pled guilty without being advised by his lawyer that deportation would be a result. This past term has extended that trend in Lafler v. Cooper and Missouri v. Frye, as I have discussed. Looking back Dean Erwin Chemerinsky finds them among the most significant of the decisions the court has made in the past year. Notably the usual 5-4 split was seen with Kennedy tilting left on this issue and Scalia drawing a list of slippery slope horribles.Chemerinsky: Effective Assistance of Counsel Now a Right in Plea Bargaining - News - ABA Journal:
by Erwin Chemerinsky

As the flurry of end of the term decisions is about to begin from the U.S. Supreme Court, it is important to not lose sight of two cases that are likely to have a dramatic effect on lawyers and judges. In Missouri v. Fryeand Lefler v. Cooper, the Supreme Court held that the Sixth Amendment right to effective assistance of counsel applies at the plea bargaining stage. Because about 95 percent of all criminal convictions are gained via guilty pleas, these cases will have a significant effect on the practice of law and also likely will lead to a large number of challenges by individuals seeking to have their pleas overturned.Both cases were 5-4 decisions, with Justice Anthony M. Kennedy writing a majority opinion joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan. In Frye, the defendant was charged with driving with a revoked license. The prosecutor wrote to Frye’s defense counsel and offered two different plea possibilities with a maximum sentence of 90 days in jail. Frye’s lawyer did not communicate the plea offers to his client and Frye was convicted and sentenced to three years in prison.The court concluded that plea bargaining is a “critical stage” of criminal proceedings and thus the right to effective assistance of counsel applies. Justice Kennedy noted that 97 percent of federal convictions and 94 percent of state convictions are gained via guilty pleas.

Gary Kreep, the star of commercials questioning President Barack Obama’s birthplace and who has argued lawsuits challenging his eligibility for office, just might be California District 34’s new judge.

Kreep, who heads the California-based United States Justice Foundation, is currently beating Garland Peed, who has been a prosecutor in the San Diego County District for 27 years. With 100 percent of precincts reporting, Kreep has 147,739 votes, or 50.01 percent, while Peed has 147,683 votes, or 49.99 percent. There are still about 135,000 absentee and provisional votes left to be counted in San Diego County."

Tuesday, June 5, 2012

The headline, I suppose, is that the gauntlet for becoming a federal judge is so formidable that there are more federal court vacancies now than there were when President Obama took office. Why? The short answer is Minority Leader Mitch McConnell and Republican obstructionism - GWC

Politics - James Fallows - American Dysfunction Watch: State of the Judiciary - The Atlantic:
"The Congressional Research Service is a non-partisan arm of the Congress whose purpose is to provide well-researched answers for questions raised by members of the Senate and House. This week it put out a report on another sign of increasing public dysfunction: the mounting number of vacant seats on the Federal judiciary, for both district courts and circuit-court appeals judges. They are vacant mainly because of the increasing difficulty of getting nominations approved by (you guessed it) ... the U.S. Senate.
Refreshingly, this is not strictly a partisan issue! Senate showdowns over judicial nominees have ramped up under both George W. Bush and Barack Obama. This chart shows the percentage of nominees who were finally approved by "roll call" vote in the Senate. The significance here is that back in the Reagan and first George Bush administrations, virtually all nominations were approved by voice vote -- ie, in an uncontested, pro-forma way."

Monday, June 4, 2012

Remarks at the Festival of Economics, Trento Italy | George Soros: "The euro crisis is particularly instructive in this regard. It demonstrates the role of misconceptions and a lack of understanding in shaping the course of history. The authorities didn’t understand the nature of the euro crisis; they thought it is a fiscal problem while it is more of a banking problem and a problem of competitiveness. And they applied the wrong remedy: you cannot reduce the debt burden by shrinking the economy, only by growing your way out of it. The crisis is still growing because of a failure to understand the dynamics of social change; policy measures that could have worked at one point in time were no longer sufficient by the time they were applied."

The federal Fair Debt Collection Practices Act [15 U.S.C.A. Section 1692 et seq] compels lawyers who engage in debt collection to state that they are "debt collectors". But that doesn't satisfy the Rules of Professional Conduct say the New Jersey Supreme Court's Advisory Committee on Professional Ethics and its Committee on the Unauthorized Practice of Law in joint opinions UCPL 48 and ACPE 725. Lawyers may not simply lend their names and letterhead to demands to pay, the Committees have ruled, echoing their own opinions and the ABA 's 1976 Informal Ethics Opinion 1368 on mailing mass form letters:

[T]he lawyer must “accept[] full professional responsibility” for the collection effort; “independent judgment [is] required to see that each letter sent is accurate and appropriate as to the account of the debtor when it is sent.” The UPLC and ACPE agree with this ABA opinion.Exercising independent professional judgment is a fundamental and indispensableelement of the practice of law. A lawyer who fails to exercise independent professionaljudgment has abdicated the practice of law, has demonstrated a lack of competence, and has committed gross negligence, in violation of RPC 1.1(a).

Brushing aside the suggestion that compliance with the FDCPA suffices, the Committees declared:

While the FDCPA arguably permits a law firm to send debt collection letters in a lay capacity, New Jersey ethics rules have always prohibited the practice. The ACPE, in Opinion 657, 130 N.J.L.J. 656 (February 24, 1992), 1 N.J.L. 129 (February 17, 1992), found that a lawyer may engage in both a legal and a nonlegal business provided the two businesses are entirely separate, in physically distinct locations, and there is no joint advertising or marketing or demonstration of a relationship between the two businesses. Hence, while a lawyer may engage in a nonlegal or lay debt collection business, a lawyer may not operate that nonlegal business from a law firm. Therefore, a New Jersey law firm may not engage in the lay debt collection business.

The Committees' published opinions are binding on all New Jersey lawyers, but are subject to discretionary review upon petition by any affected lawyer or bar association.

Sunday, June 3, 2012

Lawrence Lessig, the Harvard Law prof, has moved from internet law guru to political Cassandra. Today his focus is on the baleful influence of money on the law and politics. He gave the commencement address at John Marshall Law School in Atlanta. Below is a taste. Click on the link for the complete text. - GWCLessig Blog, v2:

There are plenty of lawyers in “Inc. Law” who go home at the end of the day and feel that that system works. Their clients got the process they were due. Their arguments were heard. Their interests were fairly considered. If through litigation, litigation in a federal court: With great judges. Beautiful carpet. Clean bathrooms. If through a transaction, a deal cut in conference rooms at the Four Seasons. No doubt these lawyers work hard. Insanely hard. And the system rewards them with the sense that the system works.
Not so with the law of real people. There is no one in the criminal justice system who believes that system works well. There is no one in housing law who believes this is what law was meant to be. In contracts, you read about disputes involving tens, maybe a hundred dollars. The disputes of ordinary people. These disputes are not for the courts any more. Or if they are, they are for courts that are an embarrassment to the ideals of justice from our tradition.
The law of real people doesn’t work, even if the law of corporations does.

The austerity hawks who dominate the public debate urge - contrary to evidence - that reducing government spending is the key to prosperity. And they assert falsely that increased government spending is the cause of the current stall. The facts are quite the reverse - but the truth is whispered while the lies are trumpeted. Here is the data on government spending from the St. Louis Federal Reserve Bank - Federal Reserve Economic data (FRED).

Brian Tamanaha has been a thoughtful commentator on the law school dilemma: it is too expensive for graduates to be able to pay off their student debt. We have seen a massive shift away from support of higher education. Instead of well-funded public universities providing subsidized price competition, everything has moved toward privatization. Public support for higher ed has ben replaced by government guaranteed (non-dischargeable) student debt. Beginning careers massively in hock is an important result of "no new taxes" thinking and voting. - GWC

If we don’t change the economics of legal education, not only will law schools continue to graduate streams of economic casualties each year, but we will also be erecting an enormous barrier to access to the legal profession: the next generation of American lawyers will consist of the offspring of wealthy families who have the freedom to pursue a variety of legal careers, while everyone else is forced to try to get a corporate law job — and those who fail will struggle under the burden of huge law school debt for decades.One solution to this problem is to strip away the accreditation requirements that mandate expenditures to support faculty scholarship — for example, deleting the requirement that the bulk of professors be in tenure-track positions, removing limits on teaching loads, not requiring paid research leaves for professors, not requiring substantial library collections and so forth. This would allow some law schools to focus on training competent lawyers at a reasonable cost while others remained committed to academic research. Law students would then be able to choose the type of legal education they desired and could afford.

Friday, June 1, 2012

Anyone with open eyes knows that press coverage of the President is mainly critical. Maybe that's the nature of being in power.. Or maybe that's the nature of things given the fact that white men dominate the media. Yet conservatives continue to live by the mantra that the press has a liberal bias, and so the overtly partisan Fox News is needed to balance that and fairly present the conservative view (in that charitable construction of the Murdoch network's slogan). But as with many things it is best to measure things numerically. Here is the Pew report:
h/t James Fallows the chart that should accompany all discussions of media bias

Joe Conason: Why Cory Booker Got Bain Capital So Wrong - Truthdig:
by Joe Conason
"Cory Booker’s emotional televised plea to “stop attacking private equity” may have been the single greatest service he could perform for the Romney campaign. His immediate attempt to revise his remarks on behalf of President Obama, for whom he is supposed to act as a surrogate, only highlighted his earlier insistence that the harsh campaign criticism of Bain Capital, which he specifically defended, is “nauseating.”

But the Newark mayor’s feelings must be influenced by his own relationship with Wall Street, private equity and Bain. America’s financial titans have been very, very good to him."